In recent months, two cases have been brought to court in Louisiana that directly affect internal investigations and the records generated from those investigations. For many years, police administrations, civil service and internal affairs investigators have been looking for guidance when it comes to subject matter outside of the individual agency policy. Internal affairs investigations and records have proven to be a political hot potato. Nobody wants to bite the bullet and give information to the press, but if we don't, people and the press believe we have something to hide. If we do give out the information, then we are out the hang the officer, a no-win situation. In the decisions below, you will find that the courts have chosen reasonable paths on behalf of the individual police officer and the policing agency.
In William Marks versus New Orleans Police Department (No. 06-C-0575), a lawsuit was filed on behalf of an officer whose employment was terminated. In that lawsuit, it stated that the investigation exceeded the 60-day period to conclude an internal affairs (IA) investigation, as stated in the Police Officer Bill of Rights. The decision to terminate employment was upheld by the civil service commission but was later overturned by the Court of Appeals. This overturning had the effect of reinstating the officer and dismissing the allegations and investigation. However, this case did not die. It was brought before the Louisiana State Supreme Court. Justice Weimer stated in the decision rendered by the court,
"... although the statute provides, in part, investigation shall conclude within sixty-days, the statute does not contain a penalty provision. For reasons that follow, we hold where no prejudice is shown due to the delay and because the legislature has not established a penalty of dismissal statutorily, the court should not do so jurisprudentially."
All of that legal talk may sound a bit confusing and intimidating, but basically Justice Weimer appears to be right on target. Of course, the above is an excerpt of the entire decision rendered, but we can take a couple of good points from this passage. First, the courts have chosen to interpret the law as it was written and not write law from the bench. Second, if an internal investigation should take more than 60 days, and we know on occasion they do, so be it. The Police Officers Bill of Rights was written as a guide to aid administrations in internal investigations. It was designed to give agencies and officers something to fall back on, not to be a shield, but as a guide. If destined to be otherwise, it would have had a penalty attached to it for insurance.
Justice Weimer went on to say,
"... because the statute does not include a penalty and no prejudice has been demonstrated, summary dismissal of the charges is not statutorily mandated if the investigation is not concluded within sixty-days..."
In my mind, this quote is one of the most important passages of the decision. Investigations that proceed beyond the 60 day time period with the agency, investigation or investigator exhibiting no ill intent or preconceived notions will remain valid. However, if the agency, investigation or investigator are shown to have a malicious intent, then all bets are off. Basically, stay objective and impartial. Just for the sake of argument, the investigation in question started on November 12, 2002 and was concluded on January 13, 2003--just beyond the 60 day limit.
The other decision from Louisiana is in reference to public records requests directed at internal affairs investigations. The court's dissertation of events starts like this:
The foregoing litigation arose out of a public records request submitted to the Baton Rouge Police Department (hereinafter "BRPD") by Capital City Press, L.L.C. d/b/a The Advocate through its Metro reporter, Kimberly Vetter (collectively hereinafter "The Advocate") on May 18, 2006. The object of that request was to review and possibly purchase "records and reports that compose the Internal Investigation of the five BRPD Officers who were disciplined in January in relation to the allegations of brutality and excessive force made by New Mexico State Police and Michigan State Police." This Court further notes that the records were sought concerning the five BRPD officers' alleged mistreatment of evacuees in the aftermath of Hurricane Katrina. Legal counsel for the BRPD denied the public records request on June 6, 2006, asserting therein that the requested records did not fall within the purview of the Public Records Act because they were exempted from disclosure by La. R.S. 44:3(A)(3) as records "for administrative Internal security procedures and purposes only."
On June 21, 2006, The Advocate, though counsel, submitted a second letter to the BRPD defining the scope of the prior records request by delineating a specific list of items sought and further indicating why it was believed the BRPD had no legal grounds to deny its request in response, the City of Baton Rouge, Parish of East Baton Rouge (hereinafter "the City/Parish") initiated an action for declaratory judgment under Docket No. 54.896 seeking a determination of whether the records requested by The Advocate were subject to disclosure under the law and further sought and expedited hearing in conjunction with its suit. The Advocate thereafter brought a related action for injunctive relief under Docket No. 544.900 seeking to enjoin the defendants from withholding the requested records, or, in the alternative, to have this Court issue a writ of mandamus ordering the production of the records requested. That action was allotted to Judge Fields in Section 8. Pursuant to a joint motion by the parties, both actions were later consolidated by order of the Court in July, 2006.
Following the consolidation, petitions for intervention were filed on behalf of various police unions and individual police officers (hereinafter "Intervenors") in support of BRPD's decision not to disclose the records that had been requested by The Advocate. The Advocate subsequently filed a memorandum in opposition to there [sic] petitions for intervention. This Court, in its written reasons for judgment submitted on August 1, 2006, granted the petitions for invention based on a finding that the interveners had satisfied the three-pronged test for "associational standing" handed down by the U.S. Supreme Court in Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333 (1977).
At the conclusion of the case, the Honorable Kay Bates of the 19th Judicial District of Louisiana concluded that the information requested by Capitol City Press was not subject to the public records rules because it violated the officers' privacy and could hinder the effectiveness of current and future internal affairs investigations.
Judge Bates concluded her judgment by saying,
"Pursuant to La. R.S. 44:35(B) and upon the express consent of counsel for the City/Parish and The Advocate, this Court exercised its right to... "view the documents in controversy in camera before reaching a decision." being of the opinion that a case-by-case, thorough examination of each document was warranted under the totality of the circumstances. After examining the document contained within the Internal affairs file and weighing the officers' privacy interests against those of public disclosure, this Court is of the opinion that the documentation contained in the internal affairs files at issue in these proceedings is properly considered confidential information with regard to those officers named therein. In so holding, this Court is influenced by the fact that the conduct at issue in the internal affairs investigation was not of such a serious or heinous nature so as to require serious discipline. Because the conduct at issue was not egregious, the officers' reasonable privacy interests are not outweighed by the public's right to know. Accordingly, the BRPD had discretion pursuant to the exception found in La. R.S. 40:2532 not to disclose the internal affairs files pursuant to The Advocate's public records request.
The public is well served by the establishment of an internal affairs division that operates as a watchdog for police misconduct. As a matter of public policy, there is a crucial need for full cooperation by all police employees during the process of an internal affairs investigation. Without the promise of confidentiality in those proceedings, officers would be less likely to fully participate, which could cause investigations to be jeopardized. If the system is to work, then it must be maintained. Furthermore, without some limit on disclosure of internal affairs records, every time a citizen lodged a complaint against an officer, the ensuring [sic] investigation into that complaint would be open to public criticism and speculation, even where the complaint was ultimately determined by internal affairs to be unfounded. Not only would such a flow-through system or disclosure cause needless and undue embarrassment to exonerated officers, but it would also be an unwarranted intrusion into and [sic] officer's right to privacy. Thus, this Court is convinced that, where the conduct at issue does not warrant serious departmental discipline, records pertaining to internal affairs investigations may properly be deemed confidential under La. R.S. 40:2532.
For the foregoing reason, this Court finds that the information sought by The Advocate pursuant to its public records request is deemed confidential under La. R.S. 40:2532, and, therefore, would not be subject to disclosure under the Public Records Act. Furthermore, the request for an injunction or, in the alternative relief filed on behalf of Capital City Press, L.L.C. d/b/d The Advocate and Kimberly Vetter is hereby denied. Judgment to be signed accordingly."
Both sides involved in this suit have vowed to take it to the Supreme Court if need be. This case will most probably be appealed and follow-ups are sure to come.
What can we surmise from these recent decisions? This is the way I see it: Internal Affairs performs a service to the police officer, the agency and the public. They are not always the bad guy. The court as well as the administration agree that confidentially is important and a necessity in these matters. In the New Orleans decision it looks like the courts have taken the side of the agency, but that is not entirely true if we look at the totality of the circumstances. Yes, the Supreme Court appears to have pulled all the teeth from the Police Officers Bill of Rights, but not so. If an agency proceeds with malice and appears to have mischievous intentions towards an officer, then the officer may have some recourse or still have some level of protection from the Police Officers Bill of Rights.
All in all, these decisions appear to balance each other out and have loosened the ropes that bind the hands of administrations and police officers. But those binds being slacked can quickly be tightened again if internal affairs investigators and administrations abuse the discretion they are granted. The courts found in these cases that the agencies acted properly with the investigations and the outcomes. The investigations were reviewed by the judges involved in each decision and were determined to be fair and impartial. Imagine if one or both of the judges would have read the IA reports and determined that they were "head hunting"? In the dissertations drafted by both judges, it clearly indicates that one of the main things that they looked for was impartiality.